Since instant writ petition as well as W.P. No, 578/2018, titled as "Abdul Nabi Gillal, Research Officer etc. vs. Secretary , Finance Division etc.", having identical issue, were heard together and both were accepted vide orders dated 21-05-2018, therefore, through this consolidated judgment, reasoning is being given for acceptance of both the writ petitions.
2. Through instant writ petition, the petitioners invoked the constitutional jurisdiction of this Court by way of filing instant writ petition with the following prayer:-- "It is, therefore, most respectfully prayed that the writ petition may graciously be allowed and an appropriate writ, in the circumstances of the case, may very kindly be issued directing the respondents to notify the appointments and issue appointment letters in favour of petitioners for the posts, they have been recommended by the Selection Board and approved by the Board of PPRA in its meeting held on 04-01-2018 and allow the petitioners to join their duties against their recommended posts accordingly .
It is further prayed that the summary dated 23-01-2018 moved by the present Managing Director PPRA to Secretary , Cabinet Division for cancellation of appointment of petitioners may also very graciously be declared as illegal, unlawful, without lawful authority , mala fide and of no legal effect.
It is further prayed that any other relief which this Hon'ble Court may deem fit and proper be also granted accordingly ."
3. Petitioners in the instant writ petition are working in BS-19 in different departments, whereas petitioners in W.P.
No, 578/2018 are working on different positions in different departments. That the Public Procurement Regulatory Authority (PPRA) published an advertisement for recruitment on various posts in different daily newspapers on 14- 10-2017, PPRA website and on OTS website. Through said advertisement, it was directed to file applications directly to the Open Testing Service (OTS). Petitioners, as per requirement of advertisement, applied for different posts through proper channel. Petitioners appeared in the written examination on 2nd, 3rd and 10th of December 2017 and remained successful. They were called for interview and they appeared before the Interview Committee on 20th, 23rd, 24th, 26th and 27th of December 2017. The HR committee considered top 5 candidates against each post, considering the allocated quota on the evaluation criteria given by the Establishment Division. According to Establishment Divisions OM No, 53/1/2008 SP, dated 21.9.2017 the recruitment, process had to be completed within 90 days. The H.R. Committee recommended the names of petitioners for the posts applied for, which were also approved by the PPRA Board in its 34th meeting held on 02-01-2018. Howe ver, for the posts of BS-20, the Board decided to take final interviews of selected and alternate candidates on 04-01-2018. In the 35th meeting of PPRA Board held on 4th January 2018, the recommendations of HR Committee for appointment against different vacant posts were approved.
4. According to petition, Petitioner No, 1 Muhammad Zubair , presently working as Principal Engineer (BS-19) in Pakistan Nuclear Regulatory Authority received his appointment letter , dated 08.01.2018 from the office of PPRA.
Other petitioners also approached Administration Wing for their appointment letters, but the respondents kept on lingering the matter on one pretext or the other .
5. During pendency of instant writ petition, petitioners came to know that the PPRA through a summary dated 23- 01-2018 moved by its Managing Directo r to the Secretary , Cabinet Division for cancellation of recruitment of petitioners, therefore, petitioners after seeking permission of this Court, filed amended petition by also putting challenge to the said summary .
6. The contention of learned counsel for the petitioners is that the respondents intend to initiate de-novo process of selection, which would take away accrued, vested and crystallized rights of the petitioners, for no fault of on their part. Learned counsel further submits that appointments of the petitioners have been withheld and till to-date no reason whatsoever has been conveyed to the petitioners. That it is the fundamental right of the petitioner to enter upon any lawful profession or occupation in accordance with the mandate of Article 18 of the Constitution. In the instant case, said right of the petitioners has been usurped and no reasonable explanation has been rendered by the Authority for withholding or denying the appointments of the petitioners. That the authority by issuing offer letter to one candidate/petitioner and denying the same to others has meted discriminatory treatment. That once the appointment process under PPRA Service Regulations is completed and the comp etent authority has approved the appointments, then under the PPRA Service Regulations, the petitioners have become employees of the Authority and issuance of formal offer letters or joining the service is a mere procedural technicality . Lastly , learned counsel for the petitioners prayed for setting aside the summary of the Managing Director and for issuing direction to the Managing Director to issue appointment letters to the petitioners and to allow them to join their services.
7. Learned counsel for the Respondent /PPRA admitted claim of the petitioners that they remained successful during written examination as well as interview . The HR Committee recommend ed the petitioners for the posts applied for, the PPRA Board approved the recommendations of HR Committee during its 34th and 35th meeting.
However , learned counsel added that before issuance of appointment letters to the petitioners, Mr Khizer Hayat Khan, Ex-MD PPRA relinquished the charge as M.D. PPRA and later on, Ms. Nargis Ghaloo joined PPRA as M.D. who directed the stoppage of said process of recruitment and it was informed that the candidates who personally collected the letters, same were not issued to them officially . Thereafter , the issue of regional provincial quota, financial implication and posts reserved for promotion in the recruitment process, was discussed in detail and clarification was sought from the Establi shment Division. In response, the Estab lishment Division referred their O.M. No, 8/15/73-TR V, according to which, posts in each grade should be considered separately for the purpose of allocation to the prescribed merit and regional/ provincial quota. Further allocation of regional/provincial quota shall be applicable to the posts in each cadre lying vacant in an organization and not against wing-wise vacant posts in an organization. Therefore, the Authority was left with no other option, but to cancel the previous process and to initiate the denovo process of selection.
8. Learned Deputy Attorney General assisted by learned Assistant Attorney General adopted the arguments of learned counsel for Respondent No, 1.
9. Arguments of learned counsel for the parties heard at length and record was minutely perused with the able assistance of learned counsel for the parties.
10. Perusal of record shows that the Hon'ble Supreme Court of Pakistan, while passing order dated 25-01-2017 in Cr1. Org. Petitioner No, 189/2016 in Crl. Org. Petition No, 89 of 2011 with regard to affairs of PPRA, directed the Respondents to immediately notify the Service Regulations of the Authority , repatriate the deputationists forthwith and to make the Authority operative. Pursuant to the said direction, 31st meeting of the Board of members of the PPRA was held on February 2, 2017, in which H.R. Committee was constituted to carry out the selection process for the recruitments against the posts of Director Generals and the Directors in the PPRA. It was further decided in the meeting that for posts up to the level of Deputy Directors, M.D. PPRA will formulate appropriate Committee.
11. According to petitioners, due to non-appointment of Member in the HR Committee by the Establishment Division, PPRA in its 33rd meeting held on 15.08.2017 decided to reinitiate the recruitment process and accordingly constituted the HR Committees to fill the vacant posts in PPRA.
12. Thereafter , the PPRA initiated the recruitment process in question, wherein the present petitioners remained successful during written examination as well as interview . As mentioned above, letter of offer of appointment was issued to one of the petitioners and other petitioners also tried to get the same, but in vain. Therefore, they invoked the constitutional jurisdiction of Court with the prayer to issue direction to the respondents to notify the appointments and issue appointment letters in favour of the petitioners.
13. During pendency of the writ petition, petitioners came to know that new Manag ing Director , Mrs Nargis Ghaloo vide letter dated 23rd January , 2018, addressed to the Secretary , Cabinet Division, Islamabad intimated that the proposal for cancellation of the current recruitment process will be presented to the PPRA Board in the forthcoming meeting. On this, petitioners after seeking permission of this Court, filed amended petition by putting challenge to the said summary with the prayer that the summary dated 23-01-2018 moved by the present Managing Director PPRA to the Secretary , Cabinet Division for cancellation of appointment of petitioners may be declared as illegal, unlawful, without lawful authority , mala fide and of no legal ef fect.
14. On noticing the aforementioned anomaly , which was causing grave injustice to the approved/selected candidates, this Court came to their rescue by passing the order dated 17.05.2018, which is reproduced as under: -- "After hearing learned counsel for the petitioners, I am fully convinced that with mala fide intention and in order to favour the blue-eyed persons, a concluded process of recruitment has been jeopardized, which is against the norms of justice and settled law by the superior Courts.
2. In this view of the matter , I direct the M.D. PPRA to appear in person alongwith appointment letters of all the petitioners before the Court, on 21-05-2018."
15. On the subsequent date of hearing i,e, 21-05-2018, Mr. Fida Muhammad Wazir, M.D. PPRA put appearance alongwith learned counsel for the Respondents. In compliance of Court's order , he submitted appointment letters of all the petitioners in a sealed envelope. At that stage, learned counsel for the Respondents submitted that before proceeding further , he may be given right of audience. His request was accepted and accordingly , learned counsel for the parties were heard at length and instant writ petition alongwith connected W.P. No, 578/2018 were accepted through following short order dated 21-05-2018:-- "..............3, For the reasons to be recorded later on, this writ petition is allowed with the declaration that concluded process of appointment could not have been recalled; rather all the petitioners should have been issued final appointment letters. In compliance of Court order , appointment letters of all the petitioners have been produced, but propriety demands that Managing Director , PPRA in attendance may himself either deliver these letters to the petitioners or mail them as per the requirement. Sealed envelope is returned to the M.D. PPRA.
4. It is expected from the M.D. PPRA that remaining process of joining etc. of the petitioners shall be completed within a fortnight."
16. Learned counsels for the petitioners, while arguing the matters, laid the thrust upon the fact that the petitioners were recommended by the HR Committe es and their appointments were approve d by the PPRA Board. Learned counsel submitted that the HR Comm ittee and PPRA Board were higher level Committees, comprising of responsible officers of the Government and their final approval could not be brushed aside in one-sided proceedings.
17. I am fully agreed with the contention of learned counsel for the petitioners, as perusal of record shows that the Respondents notified the following HR Committees to carry out the selection process:-- For the posts of DGs and Directors Secretary, Housing & Works Chairman Secretary , Communication Member Managing Director (PPRA) Member Additional Secretary Finance (HR)Member For the posts of BS-17 & 18 Managing Director (PPRA) Chairman Deputy Director (Admn) PPRA Member Deputy Director (Finance) PPRA Member Deputy Director (IT) PPRA Member For the posts from PSG-1/BS-1 to PSG-6/BS-16 Deputy Director (Admn) PPRA Chairman Deputy Director (Finance)
PPRAMember Deputy Director (IT) PPRA Member The Board which approved the recommendations of HR Committees comprised of following participants:-- 1- Mr.Shahid Mahmood Secretary Finance SecretaryChairman 2- Mr. Babar Hassan Bharwana Secretary Ministry of Housing & W orksMember 3- Lt. Gen. (R) Muhammad Ijaz Chaudhary Secretary , Ministry of Defence & ProductionMember 4- Mian Asad Hayaud Din Additional Secretary (Incharge) Ministry of Industries & ProductionMember 5- Mr. Furqan Bahadur Khan, Secretary Ministry of CommunicationsMember 6- Mr. Yousaf Naseem Khokhar Secretary , Ministry of EnergyMember 7- Mr. Khizer Hayat Khan, Managing Director (PPRA)Member/Secretary SPECIAL INVITEE Mr Mohsin Abbas Syed Sr. Consultant Ministry of Law and Justice Islamabad Perusal of above Board and Committees shows that the same comprised of heads of different ministries and departments and their wings, who are persons of reputation, capabilities and experience. The petitioners were selected and approved by such high ranked responsible officers. The selection process was over and above- mentioned HR Committees recommended and PPRA Board approved the appo intments of all the candidates, some of whom were also given appointment letters. They acquired the final clearance and were either appointed or were at the verge of being given appointment. Any deprivation at this stage to the persons, who had gone through the complete selection process laid down by the respondents, would not only be detrimental to the rule of law, but would also cause serious prejudice to the opportunity of employment, that was secured by the petitioners after selection and approval by the high-level committees and Board. That authority cannot be undermined or arrogated at the sole discretion or on the whims of the Managing Director .
18. Moreover , burden on the government exchequer is another important aspect in the present case, which cannot be ignored. During haring of instant matter , this Court enquired from the representative of the PPRA present in the Court about the cost involved in the whole process, which the exchequer will have to suffer in case of denovo process, he submitted that he is not sure about the same. Perusal of record reveals that vide letter dated 13th October , 2017, addressed to the Director (Advertisement), Press Information Department, Islamabad request has been made for publication of advertisement in as many as 7 newspapers, including Daily Dawn (English) combine, The Jang (Urdu) combine, Express (Urdu) combine, etc. One can imagine the cost which would have occurred on the publication of said advertisement in seven different newspapers. If the PPRA authorities are allowed to initiate de-novo recruitment process, this would cause undue and needless heavy burden to the public exchequer , that too without advancing any cogent and strong reason, justifying the collapse of whole process and initiation of denovo process of recruitment. It would also not be out of place to mention here, that already once process of recruitment had been cancelled due to non-appointment of Member in the HR Committee.
19. Contention of learned counsel for the Respondent/PPRA that since there were issues of regional provincial quota, finance implication and posts reserved for promotion in the recruitment process, and said wrongs done by the previous administration were to be undone, therefore, proposal for cancellatio n of current recruitment process is required to be presented to the Board , do not carry much weight for the reasons firstly , that the petitioners, strictly in accordance with the policy laid down by the respondents, have undergone the selection process and have qualified for heing finally appointed and some of them have been given appointment letters, others are waiting for the same. It is a mockery of justice that the candidates, whose appointments have been approved, are being deprived of their valuable right to get appointment, that too unilaterally , without any fault of them.
20. It has not been disputed that petitioners are at the verge of being appointed and previous Managing Director had signed their appointment letters, some of which were communicated and others were yet to be communicated when impugned decision has been taken. In such a way, the petitioners have earned legal and legitimate expectancy of being appointed against their relevant posts, which right cannot be taken away or rescinded to their detriment, summarily without pointing out any abuse of process of law. I am fortified in my reasoning from the case law "Muhammad Ismail and others v. Secretary Education, Government of Punjab and another" [2006 PLC (C.S.)
1121 wherein it has been held that: "the authority passing or making order , no doubt had the power to recall, modify or cancel the said order . The said power was' subject to exception that where the order had taken legal effect and in pursuance thereof certain rights had been created in favour of an individual, such order could not be withdrawn or rescinded to the detriment of those rights."
The doctrine of legitimate expectancy imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation and that the authority ought not to act to defeat the legitimate expectancy without some overriding reason of public policy to justify its doing so.
21. Although learned counsel for the Respondent Authority has taken the plea that that there were irregularities and illegalities in the previous process, for which impugned step is to be taken, howeve r, during course of agreements, learned counsel failed to point out even a single case of illegality or irregularity in the selection process. This Court enquired from Mr. Fida Muhammad Wazir, Managing Director that if it was the case, then have they initiated any proceedings against any of ficial/of ficer at any forum, he replied in negative.
22. The crux of above discussion is that the entire selection process was in order . There was no complaint from any quarter and the petitioners have comp letely gone through the selection proce ss and are entitled for being appointed against the posts they were selected for. In such a situation, it was not legally justifiable to strike down and scrap the entire process of recruitment through an arbitrary , non-speaking and fanciful order , without assigning cogent and convincing reasons whatsoever for such a bureaucratic approach. Through the impugned summary , the respondents have tried to trample over the feet of the persons duly selected/appointed. They have acted in an unusual and arbitrary manner . Accordingly , impugned summary 23.01.2018 moved by the present Managing Director to the Secretary , Cabinet Division is set at naught.
23. Above are the reasons of short orders dated 21-05-2018, passed in instant writ petition as well as W.P. No, 578/2018.